As you know from earlier posts, the ABA Standards Review Committee is having a meeting on its proposed revisions in January during the AALS conference.

Best Practices author Roy Stuckey has submitted comments to the Committee (copied below). What do you think of Roy’s comments? of the revisions? Should the Best Practices Implementation committee take a position?

FROM: Roy Stuckey, Professor Emeritus, Univ. of South Carolina School of Law

DATE: December 21, 2009

RE: Outcome Measures for U.S. Law Schools

I offer these comments about the Student Leaning Outcomes Committee’s report for discussion at your January 8-9, 2010, meeting. I am sorry that I will not be able to attend the meeting. As explained in more detail below, my suggestions are:

1. The Committee should either delete or substantially modify proposed S303(a)(4).

2. The proposed Standards should give more emphasis to the development of self-reflective skills.

3. The Committee should clarify the meaning of S302(b)(2)(iii).

4. The Committee should reconsider the placement and description of skills in Alternative Two of proposed S302(b)(2)(iii).

My reasons for making these suggestions are explained in the following sections:

1. If adopted, the current language in proposed S303(a)(4) could be more harmful than helpful to legal education. It says: A law school shall offer a curriculum that requires every student to complete satisfactorily at least one appropriately supervised learning experience in either (i) a substantial simulated exercise that engages students in performances of professional skills involving a type of case or problem that practitioners encounter; or (ii) a live client clinic or field placement.

The potential harm here is in the implicit suggestion that ABA-mandated and school self-identified skills could be acquired in a single simulated exercise or a single clinical course. Anyone who has tried to teach professional skills knows this is impossible. Further, this language also suggests that simulated exercises, live client clinics, and field placement are equally effective and efficient at teaching the same lessons, including professional skills instruction. This is a misconception. Each method of instruction has unique strengths. There is some overlap, but there are also significant differences, as my co-authors and I point out in Best Practices for Legal Education (2007) at pages 168-173, 180-184, 189-193, and 198-200.

I submit that the accreditation Standards would be improved if this proposal is withdrawn. Proposed S303(b)(1) (which is a modified version of existing S301(b)(1)) should be retained: A law school shall provide substantial opportunities to students for (1) live-client clinics or other real-life experiences; . . . .

I think we all know, as the Carnegie Report concluded, that law schools should provide multiple opportunities for students to engage in supervised law practice, but, unfortunately, we also know that most law schools would resist a mandate to do so from the ABA.

I wish the committee would reconsider the recommendation of the Ad Hoc Working Group on Learning Outcomes to include a standard requiring law schools to offer a curriculum that requires all students to participate in multiple courses in which they perform well-supervised authentic legal work on realistic legal problems designed to encourage reflection by students on their professional experiences, the values and responsibilities of the legal profession, and the development of the ability to assess one’s own performances, levels of competence, and professional judgment.

While not mandating any particular method for accomplishing the desired learning outcomes, this proposal makes it clear that students must participate in multiple courses in order to become adequately self-reflective about their professional development. The importance of being self-reflective is discussed in the following section.

2. An earlier version of the Learning Outcomes Committee’s report proposed adding the following language to S301, which describes the overall objectives of legal education: S301(c) A law school shall strive to produce graduates who are reflective practitioners and who have the capacity and motivation to pursue expertise throughout their careers.

Language similar to this is in existing S302(b)(1): A law school shall offer substantial opportunities for live-client or other real-life practice experiences, appropriately supervised and designed to encourage reflection by students on their experiences and on the values and responsibilities of the legal profession, and the development of one’s ability to assess his or her performance and level of competence.

Of course, the development of self-reflective skills can be enhanced by educational experiences other than live-client or other real-life practice experiences, so I agreed with the initial decision to move the language into S301. In the new draft, however, proposed S301(c) has disappeared, and Interpretation 303-3 was added on page 4: I303-3. A law school’s curriculum should encourage reflection by students on their values and experiences and on the values and responsibilities of the legal profession, as well as the development of one’s ability to assess his or her performance, professionalism and level of competence.

It is clear that the Committee wants law schools to produce reflective practitioners, as it should. I do not understand the politics that resulted in the decision to move this language out of a Standard and into an Interpretation. The skill of self-reflection should at least be on the list of mandated outcomes in S302(b)(2)(I), if not in S301.

This is what the authors of the Carnegie Report said about the value of self-reflection:

Practical judgment depends on complex traditions of living, which can only come alive through apprenticeship experiences with exemplars of inherited judgment and skill. Thus the apprenticeship of skill takes on critical aspects of the apprenticeship of professional identity and ethical meaning.

For this reason, professional schools cannot directly teach students to be competent in any and all situations: rather the essential goal of professional schools must be to form practitioners who are aware of what it takes to become competent in their chosen domain and to equip them with the reflective capacity to pursue genuine expertise. [Carnegie Report, p. 173]

Experience in the Daniel Webster Scholars’ Program in New Hampshire reinforces this point. In that program, which allows graduates to be admitted to the New Hampshire bar without taking the bar examination, bar examiners, judges, and lawyers assess the portfolios of students enrolled in the Program to determine whether those students have the necessary knowledge, skills, and values to become competent lawyers.

The Director of the Program, John Garvey, reported at the Assessment Conference in September that the first thing those experts look at when assessing a student’s portfolio is the students’ self-critiques and self-reflections, because they recognize that a critical component of an effective and responsible lawyer is the ability to identify what one does not know and the ability and desire to achieve the necessary level of expertise.

If the development of self-reflective skills should indeed be the essential goal of legal education, it should be among the mandatory outcomes in S301 or S302, not just in an interpretation of S303.

3. I am confused by the phrase “sufficient depth and breadth” in both alternatives to proposed S302(b)(2)(iii).

S302(b)(2) requires “proficiency as an entry level practitioner,” thus, S302(b)(2)(iii) as proposed would read: The learning outcomes shall be consistent with and support the stated mission and goals of the law school. The learning outcomes shall include: proficiency as an entry level practitioner in: [Alternative One] a sufficient depth and breadth of other professional skills that the law school identifies as necessary for effective, responsible and ethical participation in the legal profession.

It does not seem to me that the phrase “sufficient depth and breadth” has any meaning. If it does, please explain what it means. If it does not, please remove it.

4. I am also confused by the placement of the list of skills in Alternative Two to S302(b)(2)(iii). . . . , which shall include trial and appellate advocacy, alternative methods of dispute resolution, counseling, interviewing, negotiating, factual investigation, organization and management of legal work, and drafting.

If these skills are under consideration as mandatory outcomes, why put them here instead of as additional skills to consider adding to S302(b)(2)(I)?

If the goal of the Committee is to produce a list of the basic skills that every lawyer should possess upon graduation from law school, I would note that very few lawyers practice in appellate courts, so appellate advocacy is a strange candidate for a mandatory list, as are trial advocacy skills.

I encourage the committee to continue trying to come up with a list of skills that all law school graduates should have, but I would also point out that the MacCrate Report’s statement of skills and values does not recommend that law school graduates should possess entry level proficiency in lawyering skills. Rather, the MacCrate Report uses language like, “a lawyer should be familiar with the skills and concepts involved in [a particular skill].” Perhaps the committee should use similar language with regard to appellate advocacy, trial advocacy, and other skills in which entry level proficiency is not necessary.

Thank you for considering my comments. Good luck on your continuing work.

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Outcome Measures matters will be the subject of a panel on Friday afternoon put on by the AALS Executive Committee Forum with the ABA Section on Legal Education and Admission to the Bar, entitled Requiring Law Schools to Measure Student Learning: A Forum on ABA Accreditation Standards, 4:00 pm – 5:45 pm (general materials on Standards Review matters, including CLEA’s comments to date are available and others should be posted later) at http://www.abanet.org/legaled/committees/comstandards.html).

The Standards Review Committee will meet in conjunction with the AALS meeting, and as always their meetings are open. They will be meeting on January 8, 2010 from 8:30 to 3 pm and on January 9, 2010 from 8:30 to noon in Studio 2 at the W New Orleans, 333 Poydras Street, New Orleans, LA 70130. CLEA representatives will be present and would love the company for some or all of the time…when we have a final agenda we will share it.

The theme of the regional conference at Albany Law School last week was “Developing and Defining Measurable Goals for Teaching Law Students.”

On the Tuesday night before the conference, I received a copy of proposed changes to ABA Accreditation Standards 301-305. I will tell you a little about the new proposals, but you should read the entire document with some care. If the proposal is adopted in anything resembling its current form, it will change legal education. You can access the document on the website of the ABA Section of Legal Education and Admissions to the Bar at www.abanet.org/legaled/committees/comstandards.html. Look in the section on “drafts for consideration at Standards Review Committee meetings.” The document you are looking for is the “Learning Outcomes” draft that the committee will discuss in New Orleans on January 8-9, 2010 during the AALS meeting.

Here are two excerpts to get your attention:

1. “Standard 302, Learning Outcomes. (a) A law school shall identify, define, and disseminate the learning outcomes it seeks for its graduating students and for its program of legal education to enable its students to participate effectively, responsibly and ethically in the legal profession.”

2. “S302(b)(2) … The learning outcomes shall include . . . (2) proficiency as an entry level practitioner in: (i) legal analysis and reasoning, legal research, problem solving, written and legal communication in a legal context; (ii) the ability to recognize and resolve ethical and other professional delimmas;” . . . . and more; . . . “(4) any other outcomes the school identifies as necessary or important to meet the needs of its students and to accomplish th school’s mission and goals.”

These proposals are not finalized, of course, but the ABA is quite serious about converting the accreditation Standards to an outcomes-focused approach rather than its current inputs-focused approach. I support this new direction, even though I think the current proposal needs some work.

After you take a look at the proposal, share your reactions on this blog site.

The Law School of the Future will examine the most pressing challenges law schools face in the 21st century. In the midst of the nation’s worst economic crisis since the Great Depression, law schools must stay relevant and incorporate a curriculum that keeps pace with recent macroeconomic and social changes. Law professors must address a new phase of corporate and collective responsibility as well as the increasing need for social and economic justice in struggling communities nationwide and globally.

Law schools must improve the admission and graduation of lawyers from a broad range of racial and ethnic backgrounds who will be prepared to serve their communities in the wake of the current global economic crisis. They must also address rising student indebtedness without sacrificing quality.

Because the conference coincides with the American Bar Association’s review of law school accreditation standards, it provides an opportunity to examine structural issues such as erosion of tenure, evolution in status relationships among law faculty, and the broader tensions between accreditation standards and economic and social trends in America.

This conference provides an opportunity to engage in broad, supportive discussions about teaching. We are seeking ideas for a range of sessions including panels and workshops that fit within the conference themes, and we encourage proposals from small groups of three or four as well as from individuals. If you are proposing a panel discussion, please note whether you would be open to an additional speaker. We welcome a variety of session formats from formal papers to more informal discussion topics.

Please send your proposals to Ngai Pindell by January 15, 2010. We are currently seeking journal commitments for publication of conference papers.

On December 4, 2009, Albany Law School Dean Thomas Guernsey and keynote speaker Roy Stuckey headlined the 2009 Northeast Regional Conference “Developing and Defining Measurable Goals for Teaching Law Students.”

Professor Stuckey, author of Best Practices for Legal Education and a Distinguished Professor Emeritus of Law at the University of South Carolina School of Law, spoke about “Setting Measureable Goals for Law Student Teaching,” calling out legal education for preparing students to think like appellate judges rather than lawyers.

The conference, hosted by Albany Law School, focused on the importance of setting measurable learning goals and implementing them in both the clinic and non-clinic classroom setting. Participants discussed both general trends in curriculum reform and specific ways to develop goals to measure student learning.

Professors from Syracuse University and The College of St. Rose discussed “Pedagogy and Course Goals.”

The conference was sponsored by the AALS Section on Legal Education, Albany Law School, Syracuse University College of Law, University at Buffalo Law School and Vermont Law School.

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I recently returned from Serbia and Macedonia on a Public Interest Law Institute trip to help assess which Balkan law schools should join PILI’s expanding legal education reform project. Some professors were surprised that US law schools are also wringing their collective hands about how to give ideally all law students more meaningful experiential learning opportunities. But what really surprised our counterparts is that US law graduates can sit for the bar and get a license whether or not they’ve had any practice experience. Indeed, according to The Equal Justice Works Guide to Law Schools, most schools don’t collect information about whether their students had any hands-on experience before getting a diploma. Continue reading →

Responding to a GAO survey, law schools blamed a move toward ” a more hands-on, resource-intensive approach to legal education” and competition for US News rankings for increases in tuition, not ABA accreditation standards. More resource intensive legal education included: clinical and skills courses; diversity of specialized course offerings; increased students support – academic, career services, admission .

The report made no attempt to evaluate the relative role of the three cited factors. On the surface it seems intuitively obvious that clinical and skills courses would be more expensive than “podium” courses. For better and worse many schools rely heavily on grant and other outside funding, as well as low-cost adjunct faculty, for clinical and skills course, which would, of course, reduce the cost of such courses to the law schools. So interesting question whether clinical and skills courses deserve their “star billing” on this list.

Note that many – but not all – “best practices” are more resource intensive than dominant approaches to legal education. “Best practices” and “more hands-on, resource- intensive” overlap but are not identical.

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